Jury Nullification and the Rule of Law (original) (raw)
Our founders favored jury trials for a reason. With a jury, questions of guilt or innocence are not resolved by negotiations with officials [i.e. venal prosecutors] who hold the cards and enjoy largely unreviewable discretion in playing them. Instead, the decision whether to bring the full force of the government's penal powers to bear on an individual depends on the judgment of private citizens -- peers of the accused who can look a the sum total of the evidence, including the government's conduct, and decree whether a man deserves punishment. A jury's verdict of acquittal is final: no official can appeal it. In a public trial, police and prosecutorial misconduct can be brought to light, dubious evidence tested, and official overreach turned aside. Really, it is another feature of our separation of powers designed to pit power against power to ensure that no one enjoys too much authority and the awesome might of the goverment is not abused. For just these sorts of reasons, Thomas Jefferson once said that he considered trial by jury "the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."
Justice Neil Gorsuch, and Janie Nitze, Over Ruled, The Human Toll of Too Much Law, HarperCollins, 2024, p.129; this was Jefferson's advice to the French Revolution; today, few modern judges allow juries to hold the government "to the principles of its constitution." On 9 September, 2024, I was kicked off a jury in Somerset County, New Jersey, for refusing to enforce laws or instructions that I would consider "unconscionable."
Jury duty in Somerset County pays $5 a day. In 1924, that would have been reasonable recompense. In 2024, it is rather like an insult.
[Romans 2:14] For when gentiles [ἔθνη] who have not the law [τὰ μὴ νόμον ἔχοντα] do [ποιῶσιν] by nature [φύσει] what is of the law [τὰ τοῦ νόμου], even though they do not have the law, they are a law to themselves. [2:15] They show that the work of the law [τὸ ἔργον τοῦ νόμου; Sanskrit कर्मधर्मस्य, _karmadharmasya_] is written [γραπτόν] in their hearts [ἐν ταῖς καρδίαις αὐτῶν].
Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.
Edward Gibbon
'If Miss Tuttle's broken the law, the Jury are entitled to acquit her! It's their ancient and inalienable privilege, I shall tell them. It's the light that shows the lamp of freedom burns.'
Horace Rumpole [**John Mortimer**, "Rumpole and the Official Secret," _The Second Rumpole Omnibus_, Penguin Books, 1988, p.517-518; note]
Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.
Calvin Coolidge, to the Massachusetts State Senate,
January 7, 1914; legal "authorities" now have nothing but contempt for the idea of "the eternal foundation of righteousness."
I was summoned for jury duty some years ago, and during voir dire, the attorney asked me whether I could obey the judge's instructions. I answered, "It all depends upon what those instructions are." Irritatingly, the judge asked me to explain myself. I explained that if I were on a jury back in the 1850s, and a person was on trial for violating the Fugitive Slave Act by assisting a runaway slave, I would vote for acquittal regardless of the judge's instructions. The reason is that slavery is unjust and any law supporting it is unjust. Needless to say, I was dismissed from jury duty.
Walter Williams, 11 July 2007
Richard Paey is a Florida man who was incarcerated in 2004 for drug trafficking. There was no evidence he ever distributed or intended to sell any pills, but drug laws in many states, including Florida, allow officials to prosecute for trafficking based solely on the quantity an individual possesses. Paey spent three and a half years in prison, until he was granted a full pardon by Florida Governor Charlie Crist in September 2007... Later, Dwayne Hillis, one of the jurors in the trial, came forward publicly and said he was pressured into a guilty verdict with assurances that Richard Paey would serve no jail term.
Wikipedia -- Paey was a paraplegic as the result of an automobile accident, in constant pain, using large quantifies of prescription pain killers. He was arrested in 1997, prosecuted, and convicted, with a mandatory minimum sentence of 25 years, despite the absence of evidence that he had ever used his medication for other than lawful and medically necessary purposes.
In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.
"Rough Justice," The Economist, July 24th-30th, 2010, p.13. A case where no criminal mens rea was involved.
Yet [Superior Court Judge James] Morley wouldn't allow [Brian] Aitken to claim the exemption for transporting guns between residences. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren't comfortable convicting Aitkens. The judge refused to answer all three times.
"Brian Aitken's Mistake, An outrageous gun prosectuion in New Jersey," Radley Bako, Reason, March 2011, p.61. Brian Aitken was convicted of a felony for lawfully transporting his guns between residences because Judge Morley, in a clear case of judical misconduct, refused to instruct the jury on the relevant law. New Jersey Governor Chris Christie commuted Aitken's sentence and declined to reappoint Morley to the Bench. Mr. Aitken, however, will have a felony conviction on his record until the verdict is overturned. The jurors should have asked themselves whether Mr. Aitken had done anything wrong. But how can they all have been so ignorant of the conditions of the lawful possession, use, and transportation of firearms? Well, if they had known anything about the laws, and admitted it in the voir dire, they would have been kicked off the jury. The tyrants of our day want ignorant jurors, not informed ones, even in matter that should be common knowledge among all citizens.
SOCRATES: εἰ γὰρ μὴ ᾔδησθα σαφῶς τό τε ὅσιον καὶ τὸ ἀνόσιον, οὐκ ἔστιν ὅπως ἄν ποτε ἐπεχείρησας ὑπὲρ ἀνδρὸς θητὸς ἄνδρα πρεσβύτην πατέρα διωκάθειν φόνου, ἀλλὰ καὶ τοὺς θεοὺς ἂν ἔδεισας παρακινδυνεύειν, μὴ οὐκ ὀρθῶς αὐτὸ ποιήσοις, καὶ τοὺς ἀνθρώπους ᾐσχύνθης.
If you had no clear knowledge of piety and impiety you would never have ventured to prosecute your old father for murder on behalf of a servant. But for fear of the gods you would have been afraid to take the risk lest you should not be acting rightly, and would have been ashamed before men.
Plato, Euthyphro, 15d, translated by G.M.A. Grube [Hackett Publishing, 1981, p.22]; Greek text, Plato -- Euthryphro, Apology, Crito, Phaedo, Phaedrus [Loeb Classical Library, Harvard, 1914-1956, p.58]
SOCRATES: Men of Athens, I am grateful and I am your friend, but I will obey the god rather than you...
Do not deem it right for me, men of Athens, that I should act towards you in a way that I do not consider to be good or just or pious, especially, by Zeus, as I am being prosecuted by Meletus here for impiety. Clearly, if I convinced you by my supplication to do violence to your oath of office, I would be teaching you not to believe that there are gods, and my defense would convict me of not believing in them. This is far from being the case, men of Athens, for I do believe [_nomízô_] in them as none [_oudeìs_] of my accusers do; and I leave it to you and the god to judge me in the way that will be best for me and for you.
Plato, The Apology, 29d, 35c-d, translated by G.M.A. Grube with alterations [Hackett Publishing, 1981, pp.34, 39; Greek text, Plato -- Euthryphro, Apology, Crito, Phaedo, Phaedrus, Loeb Classical Library, Harvard, 1914-1956, pp.108-109, 126-127]
No, we can neither expect nor demand respect for the law just because it has been promulgated, regardless of its content. What matters is not respect for this or that (often accidental) decision of the majority in a parliament or of a judge. Rather, what matters is respect for the moral law, which may or may not coincide with the positive law and which involves the legally irrelevant distinction between good and evil.
Leszek Kołakowski (1927-2009), "Crime and Punishment," Is God Happy? Selected Essays [Basic Books, 2013, p.236]
I told him that a lawyer one time told me that in law school they try and teach you not to worry about right and wrong but just follow the law and I said I wasnt so sure about that.
Sheriff Ed Tom Bell [Cormac McCarthy, No Country for Old Men, Vintage, 2005, p.298]
It's every man's business to see justice done.
Sherlock Holmes [Sir Arthur Conan Doyle, "The Crooked Man," Memories of Sherlock Holmes, 1892]
An unjust law is no law at all... To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.
Martin Luther King, Jr., "Letter from a Birmingham Jail," 1963.
Do justice, sir, do justice.
Learned Hand (1872-1961)
Not long after the end of the original O.J. Simpson trial, I got in a little argument in the mail room with one of my colleagues at Los Angeles Valley College, Farrell Broslawsky, who teaches history and political science. He said that the O.J. verdict was an example of "jury nullification" and that the whole idea of jury nullification was a violation of the rule of law. Since then, I have seen the same argument made elsewhere, and I think it is important to address it.
"Jury nullification" means that a jury finds a defendant innocent because the law itself is unjust, or is unjust in a particular application, and so should not be applied. Since no O.J. jurors expressed or implied opposition to the laws against murder, their verdict was certainly not an example of nullification in that sense.
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| Freedom of Speech, 1943, Norman Rockwell (1894-1978), National Archives at College Park |
Nor did any jurors admit that they were persuaded of O.J.'s guilt but that they thought it was OK for him to have committed the murders anyway. Instead, jurors simply said that they accepted the defense argument that police carelessness and possible misconduct, motivated by racism, introduced an element of reasonable doubt against the prosecution's case.
Since Judge Ito allowed the defense to make that argument (judges typically do not allow defense lawyers to make pleas for nullification), it certainly doesn't look like a nullification case. The jury may have been more suspicious of the police than was reasonable, but that was the luck of the draw in the jury pool -- a jury in Santa Monica later found O.J. liable for the murder, under the less rigorous standard of "preponderance of the evidence," rather than "beyond a reasonable doubt," in the civil case against him.
On the other hand, does a jury have the power and the right to nullify the law? Would nullification be a violation of the principle of the rule of law? Yes, and no, respectively. It is common today for judges to tell prospective jurors that they must apply the law as he gives it to them and that their business is simply to determine whether the defendant has broken the law or not. But that is not what was intended by the right to trial by jury in the Bill or Rights. Thomas Jefferson said in 1782 (Notes on Virginia):
...it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.
Then, recommending trial by jury to the French in 1789, Jefferson wrote to Tom Paine, "I consider...[trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution...."
One may say that Jefferson is not talking about nullification, but just about a jury taking the interpretation of the law into its own hands -- though that is already well beyond what a jury is allowed to do now, especially if a jury undertook to apply its own interpretation of the Bill of Rights. On the other hand, we have the District of Columbia Circuit Court of Appeals, in United States v. Dougherty, 1972, saying:
[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.
Indeed, if juries do not have the right and power to nullify the law, we must face the fact that Harriet Tubman, one of the great heroines of American history, would and should have been guilty of multiple federal crimes by violating the fugitive slave laws. That is a morally revolting prospect, but judges today who reject nullification must confess that they would enforce the fugitive slave laws and convict Harriet Tubman. If they were to honestly admit as much, and hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg.
It is tempting to say that today we don't have laws like the "fugitive slave laws." That would be a serious self-deception. The prisons are full of people who have done nothing wrong, except be in possession of a "controlled substance" that the federal government, at least, has no authority under the Constitution to "control." People dying of cancer or AIDS have been arrested and jailed just for growing and smoking marijuana, the only thing that enables them to eat, take their medication, and stay alive. Despite the passage of medical marijuana laws in many states, as far apart as California and Maine, federal prosecutors have viciously targeted medical mairjuana activists, who are often very ill themselves, and have found pliant judges, without honor or conscience, who prohibit medical necessity defenses.
But must we simply accept such possible injustices in order to uphold the rule of law? By allowing jury nullification, do we not license the misuse of the principle, as when Southern white juries would acquit KKK'ers for murdering or terrorizing blacks or Jews? Unfortunately, as long as we have trials, by jury or otherwise, it will be possible for bias to misuse the law and perpetrate injustices. KKK'ers would have gotten acquitted because a large part of (white) public opinion, and the staff of the courts themselves, was biased in their favor. Regardless of the duties of judges or juries, a means was going to be found in such circumstances to prevent their conviction. The remedy for that is a system of checks and balances. A local jurisdiction, whether in police or courts, that allows KKK'ers to murder people and get away with it is violating the 14th Amendment by denying the "equal protection of the law," making itself liable to federal civil rights intervention, as was vigorously pursued by Ulysses S. Grant, before the shameful capitulation of the Republicans, after Grant was gone, in 1876.
Does jury nullification contribute to, rather than mitigate, such judicial misbehavior? No, because it is part of the system of checks and balances itself -- a check against the bias of judges and the irrationality and corruption that creeps steadily into the law, as irresponsible legislators and judges think about things other than justice. Jury nullification is not a violation of the rule of law because it is part of the rule of law. It represents a basic misconception of the principle of the "rule of law" itself to say that it means that everyone absolutely must obey the law until the law can be changed by the appropriate processes. Indeed, that conception of the rule of law would forbid civil disobedience, which was justified by Martin Luther King, quoting St. Augustine, that, "An unjust law is no law at all." But how can we have the rule of law if we accept something like that? How can people just go around judging for themselves whether a law is just or not? The answer is, that they have to, and that is simply the principle of moral conscience. The rule of law is not contrary to that; for the rule of law is not an injunction to blind obedience. Instead, the rule of law is a principle of the limitation of the authority of government.
To be "ruled by laws, not by men," is the old expression. Now, a jury nullifying a law or a protester practicing civil disobedience is not engaged in ruling. Instead, they are doing the precise opposite: negating the instructions and actions of government. The principle of the rule of law does the same kind of thing, for it means that the authority and power of government and of individuals in office is limited to those spheres, those issues, and those actions that are specified by the law. The rule of law denies to government unlimited or discretionary power and authority. The rule of law is thus part of a system of checks and balances to prevent dictatorship and despotism. Because of that, it is curiously the case that you do not need to have laws to have the rule of law: for the whole system of Common Law developed through the practice of the courts in considering claims that someone had committed a wrong. The original purpose of trial by jury in the Magna Carta was similar. The threat, indeed, addressed by the Magna Carta was of the laws and judges of King John. If Magna Carta juries could not nullify the laws of King John, or ignore the instructions and rulings of his judges, trial by jury would have been a useless protection. But the Barons, in obtaining King John's pledge, as Lysander Spooner wrote in 1852, "were engaged in no such senseless work as that."
The jury is the last line of defense, the last check and balance, against tyrannical government, if, that is, it is charged with determining the justice of a case and not just with blindly applying the law as given by a judge. It was become a very interesting perversion of the sytem of checks and balances when, as we are told, the Constitution means whatever the Supreme Court says it means but that we are then expected to obey without resistance. Since the Supreme Court has in general, since the New Deal, interpreted the Constitution to mean exactly the opposite of its original purpose, which had been to establish a federal government of limited and enumerated powers, but which now seems to have gotten us a national government of unlimited and plenary powers, which can legislate or regulate in any matter whatsoever, what we have seen is the destruction of the rule of law, through the arbitrary authority of an irresponsible court, rather than its preservation. When the citizen demands that the government obey the Constitution, and the government replies that it is obeying its interpretation of the Constitution, which gives it authority and discretion far beyond that overthrown in the American Revolution, then the whole idea of the "rule of law" has been turned around to justify the very kind of arbitrary, discretionary, and unaccountable authority that it was supposed to prevent.
The interpretation of the law cannot be trusted to those with the power to enforce it also. The separation of powers between the judiciary and the executive in the federal government was not sufficient to prevent this, as Thomas Jefferson already understood: "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" The federal courts are part of the federal government and will tend to take its side in the long run. This is precisely what has happened.
Hence we return to Jefferson's maxim that only trial by jury can hold a government to the "principles of its consitution." Since, as a matter of fact, a jury can practice nullification even if the judge tells it that it can't, because its deliberations are secret and unrecorded, trial by jury is still, as long as jurors are brave and informed, one of the most important protections for freedom. Most Americans on jury duty blindly obey the judge, but occasionally feelings run high enough in important cases for juries to ignore the judge and do the right thing.
In defending the rule of law but also complaining about judicial activism, Thomas Sowell says:
A judge cannot "do justice" directly in the case before him. This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand's parting salute was:
"Do justice, sir, do justice."
Holmes ordered the carriage stopped.
"That is not my job," Holmes said to Judge Hand. "It is my job to apply the law."
[The Quest for Cosmic Justice, The Free Press, 1999, p. 169]
Although Sowell is properly concerned about the erosion of the rule of law by judicial activism in the service of "cosmic" and totalitarian ideology, he and Justice Holmes are wrong in this -- an instance of the ideology of "judicial positivism." The law is supposed to be an instrument of justice, and judges, like any morally conscientious persons, have a duty to see that justice is done. What is required, of course, is a proper sense of justice, which is to respect things like property rights that have been trashed by 20th century American courts. As it happens, property rights are protected by the Constitution, the supreme law of the land. Any judge who threw out an indictment that violated the "Takings" clause of the Fifth Amendment is thus very properly respecting the law -- respecting it as it has not been respected by even the Supreme Court since the New Deal. It is only a belief in blind obedience (to the dishonest Supreme Court), not the rule of law, that prevents judges from doing this.
Recently, a federal judge in Los Angeles prohibited a cancer patient from smoking marijuana while on bail, even though he would become more ill, and might even die, without it, just because such an exemption would violate the very laws that the patient was being accused of violating. The judge, however "sympathetic" to the "plight" of the dying man, could not authorize a violation of the law. However, in a related medical marijuana case, the Ninth Circuit Court of Appeals subsequently sent back a judgment for reconsideration because the trial judge had not allowed "medical necessity" as a consideration in his opinion. "Necessity," indeed, is an old common law defense: If someone must violate a law or die, one has a perfectly valid reason for violating the law. No "judicial activist" made this up, but the trial judges in both the cases mentioned would not allow it. Who is respecting the rule of law in these cases? The judge who sadly knows that he may be condemning a man to death, or a judge who appeals to an ancient and reasonable exception to laws that are inappropriately applied? In the former, the judge is both a bad judge, rejecting the existing tools of justice, and a bad man, for not at least recusing himself lest he be forced by a perverse duty to do evil. One hopes that something like applying the Nuremberg Laws or the fugitive slave laws would have been too much for Justice Holmes.
I should note in closing, however, that government conducts much of its business today through administrative rulings and penalties that are imposed summarily, without trial by jury, or often without trial at all. This is becoming the most convenient instrument of tyranny open to modern American government. At the same time, judges who are hostile to nullification, and who have the power of arbitrarily imposing "contempt of court" penalties without trial by jury, or even legal explanation, are beginning to use their powers to intrude on the deliberation processes of juries, trying to make jurors answerable for deliberations that traditionally and constitutionally have been secret, unrecorded, and unreviewable. But, as Jefferson would have said, it is not surprising to see such devices used, by those with tyranny in their hearts, to expand their own power and the domination of government.
Fully Informed Jury Association
The Tale of the Eloquent Peasant
Quotes on the Powers and Duties of Juries
Judge Dread -- Note on Robert Bork
Copyright (c) 1997, 1998, 1999, 2000, 2003, 2005, 2006, 2007, 2008, 2010, 2011, 2012, 2013, 2015, 2018, 2020, 2024 Kelley L. Ross, Ph.D. All Rights Reserved
Jury Nullification and the Rule of Law, Note
The image we see with the Rumpole quote above is of the statue of Justice that stands on top of the "Old Bailey," which contains the central criminal courts of London. On the site used to be Newgate Prison, where, from 1783, executions were carried out. The prison was demolished in 1904. The last execution there was in 1902.
Horace Rumpole was the fictional barrister created by author John Mortimer (1923-2009), himself a barrister, for his "Rumpole of the Bailey" books (1978-2009).
Leo McKern (1920-2002) played Rumpole on the television series based on the books (1978-1992). After a while, Mortimer said that he identified McKern with Rumpole so completely, that he began to write the stories with him in mind.
Rumpole is supposed to have had his chambers in the Inner Temple, one of the Inns of Court, and the exteriors of the television shows were filmed in the Temple. 
Thus, at right, we see the Inner Temple Lane, with its inconspicuous entrance from Fleet Street at the end. We often see Rumpole walking into the Temple this way.
At left is the entrance, to #3 Dr. Johnson's Buildings, on Inner Temple Lane, that was used as the entrance for Rumpole's chambers. But we are not going to find Rumpole's name on the register.
Rumpole's assertion of the right of jury nullification is one of the points in Mortimer's treatments that exposes differences between American and British legal practices. Other points are that Rumpole will not defend a client who has confessed guilt to him; and the police are not allowed to lie to suspects, as American police and prosecutors often do, to trick or coerce suspects into confessions. These are all good; but the manner in which British law has attempted to absolish the right of self-defense, by any means, is a disgrace. In the United States, children are urged not to "run with scissors"; but it Britain they could be arrested for carrying an "offensive weapon." Contast this with the principle of self-defense found in the Harry Potter books.
These photographs are from when I visited the Temple in 2006. Other information about the site can be found under the treatment of the Templar Knights. The Old Bailey itself only allows the public into the building through a side entrance, under an archway, which leads only to the elevated visitor galleries in the courtrooms. The hall outside the courtrooms, where we often see Rumpole and his clients or associates, is not open to the public. Searches are, of course, conducted, and cell phones, cameras, or food are not allowed.
I had a previous experience with the Inns of Court in 1970. I arrived in London from France and inquired about a place to stay. I was directed to the "Inns of Court," which at the time I had never heard of. This was either Gray's Inn or Lincoln's Inn. I can't determine which now. But the facilities turned out to be a "crash pad," where I left my luggage but didn't want to sleep. I made a reservation at a bed and breakfast for the next day and then walked around London all that night. This was on my epic trip from Beirut to London.
Judge Dread -- Note on Robert Bork
Former judge Robert H. Bork was dubbed "Judge Dread" in a Reason magazine review of his book, Slouching Towards Gomorrah (1996), a title that is the classic expression of the fears and expectations of conservative culture warriors, of whom Bork is one of the principal exemplars. Bork already has a claim to fame through a couple footnotes to history. On October 20, 1973, President Nixon ordered Attorney General Elliot Richardson to fire the Watergate Special Prosecutor, Archibald Cox. Richardson resigned rather than carry out the order. The second in line of authority, William D. Ruckelshaus, Deputy Attorney General, also resigned. Cox was finally fired by the Solicitor General, none other than Robert H. Bork. This was the "Saturday night massacre." Later, in 1987, President Reagan nominated Bork for the Supreme Court. In a bitter, no-holds-barred fight, whose ruthlessness and vindictiveness turned the name "Bork" into a verb for such treatment of a nominee, Bork was rejected by the Democrat controlled Senate.
Despite the viciousness and dishonesty of his treatment, Bork was not a suitable candidate for the Supreme Court. A judicial positivist, Bork rejects the Natural Law principles upon which the Declaration of Independence and the Constitution were founded. Since the Ninth Amendment, about the rights "retained by the people," is all but meaningless without a Natural Law intepretation, Bork very consistently, and famously, compared it to a "blot of ink" -- something meaningless and uninterpretable. Someone who thinks that a key article in the Bill of Rights is a "blot of ink" does not belong on the Supreme Court (cf. Randy Barnett, The Rights Retained by the People, The History and Meaning of the Ninth Amendment, George Mason University Press, 1989). Of course, most of the Justices actually on the Court think much the same thing also. They just don't say so -- often because they don't even understand the issue. Similarly, since Senate Democrats really didn't understand or believe in the Ninth Amendment either, they could not just frankly condemn him as unsuitable for such an opinion, though some did. Later, in the unsuccessful campaign, of even greater viciousness, to prevent the confirmation of Clarence Thomas, some of the same Democrats expressed their shock and outrage that he did believe in Natural Rights.
Bork's views intruded themselves on my attention again lately when the Cato Institute reported an exchange between one of its legal scholars, Timothy Lynch, and Bork in the journal First Things, A Journal of Religion and Public Life, over an article Bork had published, "Thomas More for Our Season." The journal sounds like it was inspired by the book First Things, an Inquiry into the First Principles of Morals and Justice, by Hadley Arkes [Princeton, 1986], who does appear as an editorial advisor and contributes frequently to the journal. "Religion and public life" sounds like trouble, and the journal looks like a prime venue for conservative culture warriors.
Timothy Lynch wrote about Bork's praise of Thomas More, Bork holding that "'obedience to constituted authority' was the center of More's morality." It is not surprising that More, a staunch Catholic whose firm faith got him executed by Henry VIII, would believe such a thing. But, Lynch points out, this is no principle to be promoting in the context of American law or government, which was founded on disobedience to the "constituted authority" of King George III and the British Parliament. One expression of righteous disobedience, short of war, was, of course, jury nullification, which Bork calls a "pernicious practice." Again, Lynch points out that Bork ignores the principles of American, and even English, philosophy and jurisprudence upon which the practice, like the American Revolution itself, was based. Roman Catholic philosophy and law, although itself one of the sources of Natural Law theory, nevertheless shied away from endorsing rebellion and disobedience -- unless the Church itself, as in More's case, is threatened. That would certainly be agreeable and conformable to Bork's own positivism, in which the actual is good and "constituted authority" by definition has the authority to command obedience. The conservativism of Catholic Natural Law theory has been examined elsewhere.
Bork's reply to Lynch is tremendously revealing. First he admits that More could well have condemned the American revolutionaries "as traitors." Then he says "many Americans of the time did just that." Does this mean we are supposed to take the Loyalists seriously? Bork says, "one may agree or disagree with it," but then, implying that whether the American Revolution was treasonous is an open question, he lamely drops the issue. The point, however, is WHY; and Bork does not consider that, although it was the whole point of Lynch's objection. If More and the Loyalists would condemn the American Revolution as treason, on the basis of a principle of "obedience to constituted authority," then one would think that any properly educated American, let alone American jurist, would indeed "disagree" with the principle. Bork does not avail himself of the opportunity to do so. So, either from lack of understanding or from evasiveness, Bork does not give a responsive answer to Lynch. One is left with the impression that he may "disagree" with the judgment of treason, but we don't know the reason for it. I suspect he has been caught with no reason for it. To a positivist, the American Revolutionaries were not traitors just because they won, as a matter of fact. Bork need not worry about it, since that was the case.
Bork then moves on to nullification. His view is that this was endorsed as "civil disobedience" against royal judges and "English law regarded as oppressive." But, "There is no similar justification for a modern jury engaging in a revolutionary struggle against a legislature their fellow Americans elected." Oh? So democratic legislation is eo ipso exempt from being oppressive or being a proper object of civil disobedience? Did the Founding Fathers believe that? Certainly not. What does Bork believe? Evidently revolution is justified, in retrospect, against a government against which revolution was actually successful. But no revolution is justified against the "constituted authority" of a government still in control. More charitably, Bork may allow that revolution or disobedience was justified against an undemocratic government ("no taxation without representation"), but cannot now be allowed against "a legislature their fellow Americans elected." But is even this what the Founding Fathers believed? Certainly not. Bork might bother reading the Declaration of Independence, which says that, "whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it..." The phrase, "any Form of Government" is going to include democracy as well as monarchy, which means that the revolutionary actions of the Revolutionary Era, including jury nullification, were believed by the Founders to be the proper recourse of the citizens against their own elected governments, when misbehaving sufficiently, and not just that of King George. This is why Lynch can quote John Adams to Bork on nullification, and challenge him that, "as a leading advocate of an 'originalist' jurisprudence, he should explain why he parts company with the Founders on this issue." That is what Bork, who can quote no Founder, pointedly does not do.
Judge Bork has a certain stubborn sort of stupidity that is easily found even among the educated and intelligent, though one sometimes grows to expect it more from the Left than from the Right. Bork simply cannot address the principle which makes John Locke, not Thomas More, the ideological basis of the American Revolution and American government.
And thus the Community pertpetually retains a Supream Power of saving themselves from the attempts and designs of any Body, even of their Legislators [!], whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the Liberties and Properties of the Subject. ["An Essay Concerning the True Original, Extent, and End of Civil Government," Two Treatises of Government, Cambridge University Press, 1960, 1988, §149, p. 367]
Bork is profoundly unsympathetic with Locke's right of resistance and revolution and likely would have been a Loyalist himself in the Revolutionary Era, if not a die hard Jacobite. Bork considers the principles of the Founders mere expedients, in circumstances that Bork can only allow to be "considered oppressive" in retrospect. In a parting shot, Bork says, "I doubt the Founders would have applauded the O.J. Simpson verdict..." Since the largely black jury accepted the defense argument that Simpson could have been framed by the Los Angeles Police Department, in great measure because of black distrust of the police, Bork might ask what the Founders thought of police departments. Oh. There is a little problem. Police departments didn't exist. If the Founders could know about police deparments as now constituted, they would in fact be horrified. Cannot the citizens defend themselves and enforce the law? No, that has now been taken over by a standing paramilitary force, operating where ordinary citizens cannot conveniently carry weapons without special permits, which in most jurisdictions are difficult to obtain. The Founders, dear Judge Bork, would regard this as a regime of military occupation and tyranny.
The problem of a government that has become completely faithless to the Constitution and the Bill of Rights, either in letter or in spirit, and has adopted multiple devices of tyranny and despotism, reveals the true colors of conservatives like Bork. At a conference where it was suggested that the people no longer owed respect, loyalty, or obedience to such a government, Bork and others from the conservative spectrum just about wet their pants in shock at such a notion. The idea a "constituted authority" might, through its own betrayals and injustices, lose the right to rule was far more horrifying than the faithlessness, betrayals, injustices, and tyrannies themselves. Bork possesses, in short, a slave mentality. He is the opposite of the declaration of the State of North Carolina, which said, in ratifying the Constitution, qualified by the requirement of a Bill of Rights, "that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind" [Barnett, op. cit., p. 364]. Since the American Revolution was at this point already won, and the question was the powers and authority of the federal government, the possible need for "resistance" was clearly contemplated, not against King George, but against the "constituted authority" of the United States Government. Never has such resistance been more sorely needed than now, however complacent and content the American people have become with their peonage. What Bork "Dreads" is simply freedom.
Jury Nullification and the Rule of Law
Quotes on the Powers and Duties of Juries